A judge ruled Alabama's workers' comp law unconstitutional. Now what?

It's unclear just how a Jefferson County circuit judge's ruling this week will affect Alabama workers' compensation law going forward - but legal minds say it may be the first step toward momentous changes for Alabama in the law, the workplace and the medical field.

On Monday, Circuit Judge Pat Ballard found two provisions of the workers' compensation law - the $220 a week cap in compensation for injured workers, and the 15 percent cap on attorneys fees - unconstitutional. And because one or more provisions of the law were found unconstitutional, the entire act was struck down.

Due to the "magnitude" of the ruling's implications, Ballard stayed the order for 120 days to give the Alabama Legislature time to act. However, as the Legislature is set to adjourn later this month, it seems unlikely they will take up the action.

Mike Fish, the current president of the National Workers Compensation Defense Network, is a Birmingham attorney with Fish Nelson and Holden. His practice deals largely with workers' comp cases from the defense side - employers and insurance carriers.

He said the ruling will likely put the spotlight on the legislature to address the issues Ballard outlined. The case, Nora Clower vs. CVS Caremark, dates back to November 2013. Clower stating she had injured her back on the job and was entitled to workers' compensation benefits. According to an affidavit filed in February of this year, Clower said she earned an average of about $335 a week for CVS, being employed there for less than a year before her injury.

Under the current law, workers hurt while on the job are eligible for $220 a week in compensation for a disability once their condition has stabilized. Lawyers for the plaintiff argued that the law dated to 1987, and $220 per week was above minimum wage level and the poverty level at that time. However, living costs and wages far exceed that number now. Attorneys argued a similar cap would total just under $500 today.

"I don't think anybody is going to say the $220 maximum is fair," Fish said. "It's dated. If the goal was to put a spotlight on the problem, I'd say, 'Mission accomplished.'"

Even then, Fish said he was surprised to see the order, though he understands the reasons for it.

John Neiman, the former solicitor general for Alabama, is a lawyer with Maynard Cooper and Gale in Birmingham. He said issues such as changes to the workers' compensation law have traditionally been left to the Legislature to determine.

"There's a strong presumption that statutes are constitutional as a general matter," Neiman said. "I don't think anybody saw this ruling coming. It's not like there were a whole bunch of challenges to the statute. Workers compensation cases are litigated every day."

Fish said there are yearly attempts in the Legislature to amend the law, but getting consensus has been the problem.

"Any bill that's introduced usually includes a bunch of stuff that has no chance of getting out of committee," he said. "What needs to happen for any real change is what happened the last time the law was amended in 1992 - all the different interests need to come together."

Don Rhea, one of the attorneys for the plaintiff, said the ruling "does no more than insist that the Legislature enlist the assistance of reasonable-minded people and come up with a fix to a law which punishes janitors and executives equally."

Lawrence King, who also represented the plaintiff in the case, said the challenge to the cap on attorney fees came because the system is set up to keep injured workers from getting easy access to legal help. With a 15 percent cap, he said, workers' comp cases are not economically feasible for some lawyers.

"Our fee statute is one of, if not 'the,' lowest rates in the entire country," King said.

Normally, Neiman said, a ruling like this would have come from the Alabama Court of Civil Appeals, or the Alabama Supreme Court. Either court could take up the case on an expedited basis, if requested.

The interesting thing, Fish said, is that an appeal would have to come from the defendants. Otherwise, Ballard's ruling is only binding on this case. Neiman and Fish said other courts are not necessarily obliged to disregard the existing law if Ballard's 120-day deadline runs out.

"This is one order, from one judge, is one case," Fish said. "It's not coming from the court of highest authority. It doesn't have any controlling authority over a judge down the hall, or in the next county."

If the case is appealed, Fish said, the ruling would more than likely be struck down or set aside to allow the Legislature to work.

"I cannot imagine a situation where the Court of Civil Appeals or the Alabama Supreme Court would send us back into the work injury 'Dark Ages,'" Fish said.

For example, he said, workers' comp laws protect all parties in the "no fault" situation, where a worker is injured on the job but not at the employers' fault. Workers would sue to pay for medical treatment, with no guarantee of any relief. Employers entered cases with the potential to lose millions.

"We need our workers compensation system," Fish said. "If it has flaws, it needs to be fixed. It would be much worse without that system."